Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union

Transcription

1 Chicago Journal of International Law Volume 19 Number 1 Article Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union Patrick Jiang Gonzalo Villalta Puig Recommended Citation Jiang, Patrick and Puig, Gonzalo Villalta (2018) "Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union," Chicago Journal of International Law: Vol. 19: No. 1, Article 1. Available at: This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.

2 Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union Patrick Jiang * and Gonzalo Villalta Puig ** Abstract This Article analyses the preliminary reference procedure under Article 158(3) of the Hong Kong Basic Law and its transplantation from Article 267 of the Treaty on the Functioning of the European Union. Preliminary reference procedures require courts of final appeal to refer certain questions of law to a higher legal authority for determination before they can give judgement. This Article argues that this area of Hong Kong constitutional law is underdeveloped, due in large part to the unwillingness of the Hong Kong judiciary to respect the interests of the national legislature. An examination of the preliminary reference procedure, as practiced in the E.U., makes clear that the constitutional order in Hong Kong must do more to balance regional and national interests. To that end, this Article recommends several reforms: 1) to eliminate the existing jurisprudence regarding Article 158(3) of the Basic Law; 2) to * Patrick Jiang (B.S. Massachusetts Institute of Technology 2008; J.D. Boston University School of Law 2011; LL.M. University College London 2012) is a C.V. Starr Lecturer at the Peking University School of Transnational Law. ** Professor Gonzalo Villalta Puig is Head of the School of Law and Politics and Professor of Law at The University of Hull. He is the inaugural holder of the University of Hull established Chair in the Law of Economic Integration for his research into the economic constitution of the European Union and other non-unitary market jurisdictions. He was formerly Professor of Law and Outstanding Fellow of the Faculty of Law at The Chinese University of Hong Kong, which he served as Associate Dean (Research). Professor Villalta Puig is a Fellow of the European Law Institute, an Overseas Fellow of the Australian Academy of Law and an Associate Member of the International Academy of Comparative Law. He chairs the International Association of Constitutional Laws Research Group for Constitutional Studies of Free Trade and Political Economy and is Associate Editor of the Global Journal of Comparative Law (Brill Nijhoff). He is a member of the Committee on the Procedure of International Courts and Tribunals of the International Law Association. Professor Villalta Puig serves on the Council of The University Hull and is a member of the Executive Committee of the Committee of Heads of U.K. Law Schools. 1

3 Chicago Journal of International Law adopt E.U.-style doctrines of judicial economy, including irrelevant question, acte éclairé, and acte clair; 3) to adopt a doctrine of sincere cooperation, so as to increase the quality and quantity of judicial references; and 4) to modernize the concept of Hong Kong law to a hybrid system of common law and Chinese law. Table of Contents I. Introduction... 3 II. Origins and Development of Article 158(3) of the Basic Law... 4 A. Case Law Classification Predominant Provision Necessity Arguability B. Confusion and Controversy Order of Operations Predominant Provision III. A Comparative Approach A. Similarities between Article 158(3) of the Basic Law and Article 267 of the TFEU B. Preliminary Reference Procedure of the E.U Irrelevant Question Acte Éclairé Acte Clair IV. Lessons for Hong Kong from the E.U A. No Order of Operations B. Judicial Economy Distinguish Legal Acts from Political Acts Expand the Concept of Hong Kong Law V. Doctrine of Sincere Cooperation VI. Responsibilities of the Court of Final Appeal VII. Conclusion Vol. 19 No. 1

4 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig I. INTRODUCTION The year 2015 marked the twenty-fifth anniversary of the promulgation of the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China (Basic Law), while 2017 marked twenty years since the return of Hong Kong to the Peoples Republic of China (PRC or China). These are major milestones for a unique constitutional experiment in which the Hong Kong Special Administrative Region of the PRC (Hong Kong) and the rest of China (mainland China) co-exist as the same sovereign country but under completely different political, legal, and economic systems. The principle of this co-existenceone Country, Two Systemsis fundamental to the Basic Law. Both mainland China and Hong Kong have gained experience while living under this unique constitutional system. Yet, many areas of constitutional law remain underdeveloped. This is partly due to the unprecedented nature of the Basic Law, meaning that Hong Kong has to build up a constitutional jurisprudence from scratch. It is also partly due to political sensitivities, which inhibit a vigorous and constructive judicial dialogue. This Article focuses on Article 158(3) of the Basic Law, which has proved to be one of its most controversial provisions. It defines a preliminary reference procedure, through which the National Peoples Congress Standing Committee (NPCSC)the legislator of the central government in Beijingis to be the ultimate interpreter of the Basic Law. Under Article 158(3), Hong Kong courts must refer questions of law to the NPCSC when judicial decisions require interpretations of certain Basic Law provisions and such judicial decisions cannot be appealed. This situation is openly opposed by many lawyers and judges in Hong Kong. The Hong Kong Court of Final Appeal (CFA), the highest regional court in Hong Kong, has seldom dealt with Article 158(3), and, when it has, it has decided cases in confusing, even absurd, ways to avoid making references to the NPCSC. The jurisprudential development of Basic Law Article 158(3) remains primitive. The judicial and political elites do not agree on when a preliminary reference must be made. The people of Hong Kong have a poor understanding about the procedures role in the constitutional order. Politics and law are often conflated, and when that happens, legal clarity is rarely the victor. This Article argues that it is time to recall the European Union (E.U.) origins of Article 158(3). Article 158(3) was explicitly modelled upon the preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU). 1 The E.U., unlike Hong Kong, has developed a 1 SHUWEN WANG, INTRODUCTION TO THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION (2d ed. 2009). Summer

5 Chicago Journal of International Law workable and reputable jurisprudence to govern its preliminary references. Given the plain intention of the Basic Law to imitate the E.U.s constitution in this provision, it is worth considering whether Hong Kong can also imitate the E.U.s subsequent practice and jurisprudence. While existing literature tends to emphasize the Basic Laws difference from other constitutional systems, Basic Law Article 158(3) is an instance of similarity in which Hong Kong can learn much from a foreign jurisdiction. Indeed, Hong Kong will have to learn quickly if it wants to prove, before the expiry date of the Basic Law in 2047, that the latter is a workable constitutional document in all respects. Section II of this Article gives a brief summary of the origins of Article 158(3) and the confusing jurisprudence surrounding it. Section III explains the essential similarities between Basic Law Article 158(3) and TFEU Article 267. Section IV then explains how three E.U. rules of judicial economy (irrelevant question, acte éclairé, and acte clair) can be imitated by Hong Kong. Section V explains that Article 158(3), being copied from an E.U. treaty, necessarily brings with it the E.U. doctrine of sincere cooperation. Sincere cooperation is currently lacking in Hong Kong, but it is needed to realize the true design of the Basic Law. Finally, Section VI recommends important steps that the CFA must take to realize the intent of Article 158(3). II. ORIGINS AND DEVELOPMENT OF ARTICLE 158(3) OF THE BASIC LAW The Basic Law was drafted by a committee made up of fifty-nine politicians, technocrats, and legal experts: thirty-six from mainland China and twenty-three from Hong Kong. 2 Over the course of about four-and-a-half years, from July 1985 to February 1990, the committee produced two drafts, respectively opened to public comment in 1988 and 1989, and a final draft, which was adopted in The Basic Law Drafting Committee also had the assistance of the Basic Law Consultative Committee, consisting of 180 people from Hong Kong, and the Sino-British Joint Liaison Group, which facilitated communication between the Chinese and British governments during the handover of Hong Kong. 4 Collectively, the people contributing to the creation of the Basic Law had knowledge of diverse systems of law, including the English common law and 2 For brief history and timeline of the Basic Laws drafting, see THE HONG KONG BASIC LAW: BLUEPRINT FOR STABILITY AND PROSPERITY UNDER CHINESE SOVEREIGNTY? Appendix B (Ming K. Chan & David J. Clark eds., 1991). 3 Id. 4 Id. 4 Vol. 19 No. 1

6 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig Chinese civil law. It is reasonable to suppose that the final product benefited from many peoples experience in existing systems. However, only one provision in the Basic Law is copied explicitly from a foreign source. That provision is Basic Law Article 158(3), which defines the preliminary reference procedure for interpretation of the Basic Law: The courts of the Hong Kong Special Administrative Region may also interpret [provisions of this Law which are outside the limits of the autonomy of the Region] in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central Peoples Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National Peoples Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected. 5 To summarize, there are areas of the Basic Law that are wholly within the autonomous control of Hong Kong and areas that are not. For those that are not, the ultimate power of interpretation is not with the Hong Kong courts but with the NPCSC. Furthermore, if a Hong Kong court comes upon an issue outside of regional autonomy that affects the outcome of a case that is not appealable, the court must seek an authoritative interpretation from the NPCSC. Thus, Article 158(3) effectively changed the judicial hierarchy in Hong Kong to reflect the territorys transition from a colony to a highly autonomous region. Under colonial rule, legal questions could be appealed to the Judicial Committee of the U.K.s Privy Council. 6 After the handover, Hong Kong was given an independent judiciary with the power of final adjudication and interpretation over large areas of legal competence. For other areas that were beyond the legal competence of Hong Kong, a national body had to have a right of participation, to make final interpretations on issues that concerned the central government. The solution of Article 158(3) was to adopt an E.U.-style preliminary reference procedure, to suit the new constitutional order. 7 5 XIANGGANG JIBEN FA [THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLES REPUBLIC OF CHINA] art. 158(3) (H.K.) [hereinafter BASIC LAW]. 6 See China Field Limited v. Appeal Tribunal (Buildings), [2009] 5 H.K.L.R.D. 662, at 79, 81 (C.F.A.). 7 See Zhenmin Wang, From the Judicial Committee of the British Privy Council to the Standing Committee of the Chinese National Peoples Congress: An Evaluation of the Legal Interpretive System after the Handover, 37 H.K.L.J. 605, 614 (2007). Summer

7 Chicago Journal of International Law A. Case Law Article 158(3) was a creative solution to an unusual historical problem. On its surface, it strikes a balance between the interests of two layers of government: the Central Peoples Government of the PRC and the Hong Kong regional government. It assigns to each a respective place in judicial interpretation where the division of competence makes it appropriate. However, Article 158(3) has been controversial in practice. According to Chinese constitutional principles, the ultimate power to interpret the Constitution of the PRC and PRC statutes must rest with the highest organ of democratic power: the National Peoples Congress. 8 This body is the national legislature and the most direct representative of the people of China at the national level. 9 The National Peoples Congress is awkwardly large and meets for only two weeks a year, so it can only deal with high-level issues as a plenary body. 10 It has a standing committee (NPCSC), a subgroup of about 160 people, that deals with finer issues of legislation throughout the year. 11 One major function of the NPCSC is to interpret legislation. 12 In keeping with Chinese constitutional principles, the NPCSC is entitled to make and interpret the laws of the PRC at any time, for any reason. 13 In the legal order of the PRC, the Basic Law is ordinary legislation; 14 as such it can be interpreted by the NPCSC like any other legislation. Article 158(3) provides one way to solicit an NPCSC interpretation of the Basic Law, but it is by no means the only way. Of the five NPCSC interpretations of the Basic Law to date, only one of them was requested through Article 158(3). 15 A second was requested by the Hong Kong government via the State Council. 16 Another was 8 See Dingjian Cai, Functions of the Peoples Congress in the Process of Implementation of Law, in IMPLEMENTATION OF LAW IN THE PEOPLES REPUBLIC OF CHINA 35, 36 (Jianfu Chen et al. eds., 2002) ([S]ince [the NPC] is the supreme organ of state power, it does not allow the ultimate power of the interpretation of law to rest with the Supreme Peoples Court. Otherwise, there would exist a power restricting the power of legislation, which is inconsistent with the principle of democratic centralism.). 9 See QIANFAN ZHANG, THE CONSTITUTION OF CHINA: A CONTEXTUAL ANALYSIS 124 (2012) (describing the National and Local Peoples Congresses, which are officially regarded as the cornerstone of the current Constitution and the primary symbol of Chinas democracy). 10 Id. at Id. 12 XIANFA [CONSTITUTION OF THE PEOPLES REPUBLIC OF CHINA] art. 67(4) (1982) (China). 13 See ZHANG, supra note 9, at BASIC LAW, supra note 5, at Instrument 9 (documenting the adoption of the Basic Law by the National Peoples Congress). 15 Id. at Instrument Id. at Instrument Vol. 19 No. 1

8 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig requested by the State Council itself. 17 And two others were requested by the NPCSCs Council of Chairmen. 18 So far, nearly all NPCSC Basic Law interpretations have not been obtained through the Article 158(3) procedure. The concept of NPCSC interpretation is alien to common law lawyers. In common law systems, laws are supposed to be interpreted by courts in the course of litigation, and legislatures are not supposed to determine the outcome of judicial proceedings. 19 The fact that the NPCSC can make interpretations that are not consistent with common law procedure, and not specifically allowed by Article 158(3), is said by some to undermine Hong Kongs autonomy and judicial independence. 20 The Court of Final Appeals (CFA) is likewise unenthusiastic about the interpretive powers of the NPCSC. Although the CFA recognizes the NPCSCs constitutional role, 21 the CFA prefers not to incur an Article 158(3) obligation to refer. For its part, the CFA has articulated a confusing set of rules establishing when it will or will not refer questions to the NPCSC. The rules revolve around four tests: classification, predominant provision, necessity, and arguability. 1. Classification The first test for judicial referral concerns classification. The CFA announced the test in the case of Ng Ka Ling v. Director of Immigration. 22 In that case, several children who claimed to be born permanent residents of Hong Kong attempted to assert their right of abode in Hong Kong. All of them had entered or stayed in Hong Kong without proper documentation. At issue in the case was the interplay between two provisions of the Basic Law: Article 24 (defining permanent residents) 23 and Article 22(4) (requiring people from other parts of China to apply for approval before entering Hong Kong). 24 Could a 17 Id. at Instrument Id. at Instruments 18, See Zhenmin Wang, supra note 7, at 61011; Andrew Li, The Development of the Common Law in Hong Kong under One Country Two Systems, 21 SING. ACAD. L.J. 375, (2009). 20 See, for example, Yash Ghai, The Intersection of Chinese Law and the Common Law in the Hong Kong Special Administrative Region: Question of Technique or Politics?, 37 H.K.L.J. 363, (2007); Albert H.Y. Chen, The Rule of Law under One Country Two Systems: The Case of Hong Kong, , 6 NATL TAIWAN U. L. REV. 269, 275 (2011). 21 The plenary power of the NPCSC to interpret the Basic Law is confirmed by the Hong Kong Court of Final Appeal in Lau Kong Yung v. Director of Immigration, [1999] 3 H.K.L.R.D. 778 (C.F.A.). 22 Ng Ka Ling v. Director of Immigration, [1999] 1 H.K.L.R.D. 315 (C.F.A.). 23 BASIC LAW, supra note 5, at art. 24 (listing six categories of permanent residents). 24 Id. at art. 2 (For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval.). Summer

9 Chicago Journal of International Law permanent resident under Article 24 nevertheless be denied recognition by the Director of Immigration for not complying with Article 22(4)? Put another way, was Article 24 permanent resident status qualified by Article 22(4)s procedural requirements? The CFA considered whether it was necessary to ask the NPCSC for an interpretation. First, the CFA examined whether the provisions of the Basic Law in question (a) concern affairs which are the responsibility of the Central Peoples Government; or (b) concern the relationship between the Central Authorities and the Region. 25 Such provisions are so-called excluded provisions. 26 Provisions of the Basic Law that are not excluded provisions do not need to be referred to the NPCSC. The CFA called this query the classification test. Unfortunately, the CFA did not give any details about how to identify excluded provisions. It only assume[d] that Article 22(4) is an excluded provision on the sole basis that it concerns the relationship between the Central Authorities and the Region. 27 The CFA also asserted, without evidence, that Article 24, being a provision within the limits of the Regions autonomy, is not an excluded provision Predominant Provision Although the CFA found that Article 22(4) was an excluded provision and Article 24 was not, this did not resolve the matter because the different questions of interpretation did not separate cleanly. The proper interpretation of Article 24 (the non-excluded provision) depended upon the interpretation of Article 22(4) (the excluded provision). Were the NPCSC to interpret Article 22(4), it would indirectly determine the interpretation of Article 24. Should the NPCSC be allowed to do so? The CFA thought not. It declared that a main objective of Article 158(3) was to authorize the CFA to interpret on [its] own the provisions within the limits of the Regions autonomy. 29 If the NPCSC could weigh in on the interpretation of non-excluded provisions, even indirectly, that would be a substantial derogation from the Regions autonomy and cannot be right. 30 Consequently, the CFA invented a predominant provision test: 25 Ng Ka Ling, supra note 22, at Id. at Id. at Id. at Id. at 104 (internal quotes omitted). 30 Id. at Vol. 19 No. 1

10 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig [A]s a matter of substance, what predominantly is the provision that has to be interpreted in the adjudication of the case? If the answer is an excluded provision, the Court is obliged to refer. If the answer is a provision which is not an excluded provision, then no reference has to be made, although an excluded provision is arguably relevant to the construction of the nonexcluded provision even to the extent of qualifying it. 31 Again, the CFA did not give any reasoning when it invented and then used this predominant provision test. 32 It only asserted that Article 24 was predominant in this case. Thus, the CFA determined that there was no role for the NPCSC. The CFA proceeded to construe both Article 24 and Article 22(4), even though one of them was an excluded provision. 3. Necessity The third test for judicial referral is the necessity test, although the CFA in Ng Ka Ling did not actually apply it. 33 The necessity test asks whether the court needs to interpret any excluded provisions and if that interpretation would affect judgment in the case. 34 If so, the CFA must refer the interpretation to the NPCSC. In Democratic Republic of the Congo v. FG Hemisphere Associates LLC, 35 the CFA finally put the necessity test into practice. That case asked whether Hong Kong courts should apply an absolute or restrictive theory of sovereign immunity. In question were Articles 13 and 19 of the Basic Law, both of which, according to the CFA, plainly were excluded provisions. 36 The CFA then applied the necessity test. Still, the treatment was cursory: [T]he [Democratic Republic of the Congo] has not waived its immunity. Hence the case cannot be resolved without a determination of the questions of interpretation affecting the meaning of Articles 13 and 19 of the Basic Law... The necessity condition is therefore satisfied. 37 The CFA has never provided any details about how to determine necessity. 31 Id. at Po-Jen Yap, 10 Years of the Basic Law: The Rise, Retreat, and Resurgence of Judicial Power in Hong Kong, 36 COMMON L. WORLD REV. 166, 171 (2007). 33 Ng Ka Ling, supra note 22, at Id. 35 Dem. Rep. Congo v. F.G. Hemisphere Assocs., [2011] 1 H.K.C.F.A.R. 41 (C.F.A.) [hereinafter Congo]. 36 Id. at Id. at 406. Summer

11 4. Arguability Chicago Journal of International Law Finally, there is an arguability test. Congo explained it in this way: [O]nce the classification and the necessity conditions were satisfied there was a duty to make a reference of the question of interpretation if it was arguable but not if it was plainly and obviously bad. 38 Thus, Congo firmly identified arguability as a separate and final test, after classification and necessity, to deny a reference to any argument that was plainly and obviously bad. It is not clear how the arguability test gets applied because the CFA has never found an argument to have come close to failing it. 39 B. Confusion and Controversy 1. Order of Operations The CFAs law on preliminary references is a mess. One serious question that has upset scholars is about the order of operations. Congo, the most recent case on point, articulated the four tests in this order: 1) classification, 2) predominant provision, 3) necessity, and 4) arguability. 40 The CFA did not say that the order was strict, but government bodies 41 and scholars have gone on to assume that it is orthodox. However, this strict order of operations is not consistent with logic or judicial economy. Scholars have expended considerable energy trying to make sense of it. Denis Chang and Albert Chen have debated whether the CFA is generally right to consider classification before necessity. The critical question is, according to Chang, [i] s there a need in this case to interpret an Excluded Provision? 42 He argues that, to answer the question, one must first decide if one is dealing with an excluded provision. 43 On the other hand, Chen argues that 38 Id. at 398 (citing Ng Ka Ling, supra note 22). 39 See, for example, id. at 404 (We consider questions relating to Articles 13 and 19 clearly arguable. No other conclusion as to arguability is possible when regard is had to the conflicting views expressed in the courts below, particularly the division of opinion in the Court of Appeal.). 40 See Congo, supra note 35, at The Legislative Council recites the tests in faithful order. Legislative Council Panel on Administration of Justice and Legal Services, LC Paper No. CB(2)1150/11-12(01), Denis Chang, The Reference to the Standing Committee of the National Peoples Congress under Article 158 of the Basic Law: The Question of Methodology, in HONG KONGS CONSTITUTIONAL DEBATE: CONFLICT OVER INTERPRETATION 143, 143 (Johannes M. M. Chan et al. eds., 2000). 43 Id. 10 Vol. 19 No. 1

12 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig there is no point in classifying a provision unless one finds that the provision is necessary for deciding the case. 44 Elsewhere, Cora Chan has questioned the sense behind the arguability test. She explains that either arguability is a standard of review for necessity, in which case it is not really a separate test, 45 or it is a threshold question that should come before necessity. 46 Chan is right to conclude that the CFA is confused about the rationale behind the arguability test. Clearly, the order of operations has become a source of significant anxiety for scholars. The most frustrating thing is that it should never have become a serious concern in the first place because a strict order of operations is illogical and useless. Not even the CFA itself follows the order closely. 47 This Article argues that scholars should abandon any notion of an order of operations. 2. Predominant Provision The second and more serious problem with the CFAs law on preliminary references is the predominant provision test. The CFA invented the test in Ng Ka Ling and refused to refer the interpretation of Article 22(4) to the NPCSC, even though Article 22(4) was an excluded provision. It was not because Article 22(4) did not matter; it was only that Article 22(4) was not predominant over Article 24. The logic of the predominant provision test is indefensible if one considers the letter or the spirit of Article 158(3). In Ng Ka Ling, there was a legitimate 44 Albert Chen, The Court of Final Appeals Ruling in the Illegal Migrant Children Case, in HONG KONGS CONSTITUTIONAL DEBATE: CONFLICT OVER INTERPRETATION 113, 116 (Johannes M. M. Chan et al. eds., 2000). 45 Cora Chan, Implementing China and Hong Kongs Preliminary Reference System: Transposability of Article 267 TFEU Principles, 2014 PUB. L. 642, 655 (2013) ([I]n deciding whether arguments for seeking reference are at least arguable, the court would inevitably have to consider whether the necessity and classification conditions are arguably satisfied. So, contrary to the CFAs analysis in Ng Ka Ling, arguability should not be treated as a separate stage of analysis.). 46 Id. at 654 (suggesting that whenever the meaning of a provision can potentially affect the outcome of the present case, the provision is applicable and relevant to the case, and the necessity test is passed, regardless of whether the meaning of the provision is clear). 47 The CFA has been utterly inconsistent about the placement of the arguability test. Congo, citing Ng Ka Ling, put the test last. See supra note 39 and accompanying text. Ng Ka Ling had actually put arguability first, saying, if the Court decides that it is arguable, the Court would then consider whether the classification and necessity conditions are satisfied. Ng Ka Ling, supra note 22, at 100. In actual application, the CFA has done neither of the above. In Ng Ka Ling, arguability was applied second, after classification but before predominant provision. See id. (In the present case, it is arguable that an excluded provision (Article 22(4)) is relevant to the interpretation of a nonexcluded provision (Article 24).). In Congo, arguability was applied third, right before necessity. See Congo, supra note 35, at 404 (We consider questions relating to Articles 13 and 19 clearly arguable.); id. at 405 (The only issue is whether the necessity condition is satisfied and it is to that issue we now turn.). Summer

13 Chicago Journal of International Law need to interpret Article 22(4) that affected the final judgment in the case. The plain meaning of Article 158(3) makes clear that such interpretation should be referred to the NPCSC. To take any other view, according to Chen, would be inconceivable. 48 Furthermore, the NPCSC has a legitimate constitutional role to play in making authoritative interpretations of excluded provisions like Article 22(4). Po Jen Yap argues that [w]here there are two conflicting Basic Law provisions, one which falls within the prerogative of the central government, ipso facto this conflict should be resolved by the Standing Committee. 49 The predominant provision test has been soundly discredited by authors like Chen, 50 Yap, Pui Yin Lo, 51 and Lawrence Li. 52 But why would the CFA, a body of prominent and respectable judges, make up a legal test that it knew to be absurd from the start? 53 The most logical explanation is that the CFA was trying desperately to avoid a reference because it regarded references to the NPCSC generally to be repulsive 54 a view that persists to the present day. 55 However, this is not consistent with the clear intention of the Basic Law, 56 and this view must change if this area of constitutional law is to have any coherence. 48 See Chen, supra note 44, at 115 (If one takes [the facts of the case] and reads again the relevant text of Article 158(3)... having regard to its ordinary, natural and plain meaning, I think it is inconceivable for one not to conclude that the CFA in this case was bound under Article 158(3) to refer the interpretation of Article 22(4) to the NPC Standing Committee.). 49 Yap, supra note 32, at See Albert Chen, Ng Ka Ling and Article 158(3) of the Basic Law, J. CHINESE & COMP. L. 222, Pui Yin Lo argues that the predominant provision test cannot be an objective legal test because it is inherently biased. See PUI YIN LO, THE JUDICIAL CONSTRUCTION OF HONG KONGS BASIC LAW: COURTS, POLITICS AND SOCIETY AFTER (2014) ([The predominant provision test] is an exercise dependent on the proponents point of view.). 52 See Lawrence Li, Dual System of Constitutional Interpretation: A Hong Kong Experience, 5 VIENNA J. INTL CONST. L. 572, 584 (2011) ([T]he arguability or predominant tests cannot justify a refusal to refer an excluded provision if the necessity condition is satisfied.). 53 The CFA never took the predominant provision test seriously. See Yap, supra note 32, at 172 ([T]he CFA has been disingenuous about the application of [the predominant provision] test, as it paid scant attention as to how the predominant provision may be identified.). 54 See LO, supra note 51, at 375 (arguing that the court in Ng Ka Ling had to find a way not to refer because of the significant symbolic value of that case to autonomy and judicial independence). 55 See id. at 391 (arguing that, up through the case of Ng Siu Tung v. Director of Immigration, [2002] 1 H.K.L.R.D. 561 (C.F.A.), there is apparently an entrenched institutional reluctance on the part of the Court of Final Appeal to make judicial references); LO, supra note 51, at 460 (arguing that the CFA actively tries to insulate itself from mainland influence). 56 In its interpretation, the NPCSC criticized the CFA for failing to make the reference when it should have. See BASIC LAW, supra note 5, at Instrument Vol. 19 No. 1

14 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig III. A COMPARATIVE APPROACH A few things are apparent. The jurisprudence of Article 158(3) is convoluted and unclear. Certainly, it does not exemplify predictability and transparency, which are values in the common law tradition. If there is no fresh direction, judges and scholars may spend many more years trying to untangle the problems with the judicial reference procedure. By then, people may have lost patience with the Basic Law. However, it may not be necessary to dwell on the shortcomings in CFA case law if we take a slightly different approach to understanding Article 158(3). In particular, it is possible to take a comparative approach by returning to the original intention of the Basic Law text and gaining a straight-forward understanding of the judicial reference procedure. A. Similarities between Article 158(3) of the Basic Law and Article 267 of the TFEU The official introduction to the Basic Law confirms that Article 158(3) is adapted from TFEU Article 267: [The method of judicial reference] is adopted after consulting the measures for interpreting laws taken by the European Community.... [It] effectively helps to resolve the contradiction caused by the fact that the power of interpretation and the power of final adjudication are not vested in the same institution and ensures the unified understanding and implementation of the European Community laws in its Member States, which is worth our consideration. 57 The introduction goes on to note that, in general, E.U. practice has not impaired the judicial independence of lower courts. 58 Given the clear and deliberate transplant of TFEU Article 267 into Article 158(3), it should be no surprise that they look similar: 57 See BASIC LAW, supra note Id. at 217. Summer

15 Chicago Journal of International Law TFEU Article 267 (excerpted) Where any such question [concerning the interpretation of the Treaties or the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union] is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. 59 Basic Law Article 158(3) (excerpted) [I]f the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central Peoples Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the [NPCSC] through the Court of Final Appeal of the Region. 60 The similarities are self-evident. First, preliminary references are confined to certain subject matters that affect the rights and obligations of the higher-level government. In the case of the E.U., those subject matters encompass E.U. treaty articles, acts of E.U. institutions, and anything that forms part of the E.U. legal order. 61 In the case of Hong Kong and the PRC, those encompass provisions concerning affairs which are the responsibility of the Central Peoples Government and the relationship between the Central Authorities and the Region. 62 Matters that relate to exclusive powers of the lower-level government do not require a reference to the higher-level government. Also, preliminary references are only required where there is no further judicial remedy in the lower jurisdiction. Some other requirements in Article 158(3) that relate to judicial economy (namely, those regarding the need to interpret a 59 Consolidated Version of the Treaty on the Functioning of the European Union art. 267, Oct. 10, 2012, 2012 O.J. (C 326) 165 [hereinafter TFEU]. 60 BASIC LAW, supra note DAMIAN CHALMERS, EUROPEAN UNION LAW: TEXT AND MATERIALS (3d ed. 2014) (Although Article 267 TFEU, thus, only talks of the Court giving rulings on the Treaties and acts of the EU institutions, the Court has, consequently, interpreted it more broadly to include anything which forms part of the wider EU legal order. This includes international agreements concluded prior to the establishment of the European Communities to which the Union has succeeded the Member States and general principles of law and fundamental rights.). 62 See WANG, supra note Vol. 19 No. 1

16 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig provision that will affect the judgements on the cases) have parallels not in TFEU Article 267 but in early E.U. case law. 63 Similarity is a natural and desired consequence of adaptation. Adaptation makes sense because the intended functions of preliminary reference are the same in both jurisdictions. In the E.U., Member States confer power upward to the E.U., while in China, the central government confers power downward to Hong Kong. But regardless of which direction the conferral of power flows, the function of preliminary reference is equally valid. In the E.U., preliminary reference seeks to achieve a uniform interpretation of E.U. laws and the effective implementation of those laws across all Member States with their different legal traditions. 64 The Basic Law is law in Hong Kong and in the PRC at large, and, as such, its interpretation and implementation must not clash with the other laws and Constitution of the PRC. 65 Legal uniformity in the PRC means a consistent interpretation of relevant PRC law as applied to Hong Kong and to other parts of the PRC. Most interpretations and implementations of the Basic Law will not create conflict with the other laws and Constitution of the PRC. The very intention of One Country, Two Systems is to provide for a significant separation of legal systems such that the systems seldom clash. The provisions of the Basic Law that are likely to interact with the laws and Constitution of the PRC are the excluded provisions (again, provisions concerning affairs which are the responsibility of the Central Peoples Government, or concerning the relationship between the Central Authorities and the Region). Excluded provisions, by definition, affect the government of Hong Kong as well as the rights and duties of the central government. Where the practices of multiple governments intersect, there ought to be a mechanism for achieving a consistent understanding of law between them. From time to time, the similarity of Basic Law Article 158(3) and TFEU Article 267 has been noted in the scholarly literature. 66 However, most authors regard the similarities as being merely superficial. A few authors see limited 63 See Section III.B.13, infra. 64 See, for example, Case 314/85, Firma Foto-Frost v. Hauptzollamt Lübeck-Ost, 1987 E.C.R. 4199, 15 ([T]he main purpose of the powers accorded to the Court by [TFEU Article 267] is to ensure that Community law is applied uniformly by national courts.). 65 Regarding the necessity of NPCSC interpretation, see WANG, supra note 1, at 213 ([O]nly when the Central Authorities have the power to interpret the Law can unified understanding and implementation of the Law be guaranteed throughout the country.). 66 See, for example, Firma Foto-Frost, supra note 64; WANG, supra note 1. Summer

17 Chicago Journal of International Law applications in the comparison. 67 Most authors focus on fatal differences between the Hong Kong setup and the E.U. setup, and conclude that no comparison is useful. 68 Here again, the complaints are primarily that the NPCSC is not a judicial body and that it makes interpretations outside the course of litigation. It ought to strike more people that neither complaint, at least formalistically, condemns the Basic Law regime. Constitutions do not have to be solely interpreted by courts. Elsewhere in the world, they are interpreted by legislatures, including in Finland, where a committee of the Finnish Parliament, not a court, is the final interpreter. 69 In other countries like the U.K. that have a principle of parliamentary sovereignty, legislatures pass ordinary legislation to reverse constitutional judgments of courts (leaving previously rendered judgments unaffected, of course). 70 Furthermore, in some countries, courts render advisory opinions outside the course of litigation. For example, in Canada, the Supreme Court entertains reference questions about constitutional issues from the federal cabinet and provincial governments. 71 Ten states of the U.S. allow their supreme courts to provide advisory opinions to the states executives or legislatures, usually about constitutional issues. 72 All of the above jurisdictions are paragons of the rule of law. Finally, the fact remains that Basic Law Article 158(3) was intended to emulate TFEU Article 267, so a coherent legal practice should strive to give effect to that intent. None of the foregoing complaints undermine the major goal of preliminary referencesto achieve uniform interpretation of laws where multiple levels of government have rights and obligations. Comparison between 67 See, for example, Chan, supra note 45, at 655 (seeing room for adoption of the doctrine of acte éclairé but not acte clair); Chen, supra note 44, at 121 (seeing value in E.U. law for learning the meaning of necessity). 68 See, for example, JAMES CRAWFORD, RIGHTS IN ONE COUNTRY: HONG KONG AND CHINA 9 (2005); Mark Elliott & Christopher Forsyth, The Rule of Law in Hong Kong: Immigrant Children, the Court of Final Appeal and the Standing Committee of the National Peoples Congress, 2000 ASIA PAC. L. REV. 53, 72 (2016). 69 See Markku Suksi, Finland, in HOW CONSTITUTIONS CHANGE: A COMPARATIVE STUDY 87 (Dawn Oliver & Carlo Fusaro eds., 2011). 70 See Zhenmin Wang, A Decade of Hong Kong Basic Law Actualization, in CHINAS HONG KONG TRANSFORMED: RETROSPECTS AND PROSPECTS BEYOND THE FIRST DECADE 155, 165 (Ming K. Chan ed., 2008). 71 See Tsvi Kahana, Canada, in HOW CONSTITUTIONS CHANGE, supra note 69, at 9. The similarity between Hong Kong and Canada was also noted by Pui Yin Lo. See LO, supra note 51, at 412 n MEL A. TOPF, A DOUBTFUL AND PERILOUS EXPERIMENT: ADVISORY OPINIONS, STATE CONSTITUTIONS, AND JUDICIAL SUPREMACY ix (2011). 16 Vol. 19 No. 1

18 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig Basic Law Article 158(3) and TFEU Article 267 remains valid, and it ought to be explored much more deeply. B. Preliminary Reference Procedure of the E.U. At todays historical juncture, given the similar origins, structures, and functions of Basic Law Article 158 and TFEU Article 267, it is sensible to ask again whether Hong Kongs judicial reference procedure can be improved by more closely following the E.U.s example. The relevant law of the E.U. can be summed up briefly: when national courts encounter a question about E.U. law, they can initiate a discretionary or non-discretionary referral to the Court of Justice of the European Union (European Court of Justice, or ECJ). 73 Discretionary referrals are available to any court, of any level, at any stage of proceedings. In effect, the right of discretionary referral empowers every court in the E.U. to be an active participant in E.U. law. 74 Discretionary referrals impose no obligations on any courts, and they are not consequential to the topic of this article. Non-discretionary referrals are required by TFEU Article 267 whenever a national court faces a question of E.U. law and there is no further judicial remedy. However, there are three exceptions of judicial economy in the case law: irrelevant question, acte éclairé, and acte clair. 1. Irrelevant Question The irrelevant question doctrine proposes that national courts should not refer questions that are not relevant to the outcome of a case. The concept was clearly stated in Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health: 75 [The] mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to [refer it to the Court of Justice] PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES, AND MATERIALS 468 (6th ed. 2015) (Article 267 TFEU draws a distinction between courts or tribunals with a discretion to refer to the CJEU, Article 267(2), and courts or tribunals against whose decisions there is no judicial remedy under national law, Article 267(3), which have an obligation to refer, provided that a decision on a question is necessary to enable judgment to be given.). CHALMERS, supra note 61, at 170 (All national courts are granted equal possibilities to make a reference to the Court of Justice and no national court can disenfranchise another national court.... For lower courts, scornful of higher courts or feeling unduly constrained by national judicial hierarchies, the EU judicial order is one which offers them many opportunities.). 75 Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, 1982 E.C.R [hereinafter CILFIT]. Summer

19 Chicago Journal of International Law [National] courts or tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case. 76 Importantly, it is up to the national courts own discretion whether a question is relevant or not Acte Éclairé The acte éclairé doctrine says that national courts do not have to refer a question where the answer is already clear from a previous ruling of the ECJ. The concept was articulated in the case of Da Costa en Schaake v. Nederlandse Belastingadministratie: 78 Although [TFEU Article 267] unreservedly requires [national courts of final instance] to refer to the Court every question of interpretation raised before them, the authority of an interpretation under [Article 267] already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case. 79 Acte éclairé is valid even if the previous ruling was directed to a different court in a different member state, or even if the questions of interpretation are not strictly identical. 80 One can think of acte éclairé as a sort of stare decisis in E.U. law. 3. Acte Clair The acte clair doctrine allows national courts to omit referrals where the interpretation of E.U. law is so obvious from the text that there is no room for reasonable doubt. 81 Obviousness, of course, is viewed from the perspective of the ECJ and the entire E.U. 82 Again, the main authority is CILFIT: The correct application of Union law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court 76 Id. at Id. at Cases 28-30/62, Da Costa en Schaake v. Nederlandse Belastingadministratie, 1963 E.C.R Id. 80 See CRAIG & DE BÚRCA, supra note 73, at Case 495/03, Intermodal Transports BV v. Staatssecretaris van Financiën, 2005 E.C.R. I-8151, Id. 18 Vol. 19 No. 1

20 Hong Kong and E.U. Preliminary References Jiang and Villalta Puig of Justice. Only if those conditions are satisfied may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it. 83 The exception provided by acte clair is a narrow one, and it is debated whether national courts are truly capable of knowing what is obvious to the ECJ. 84 Some scholars argue that acte clair is actually a political valve, disguised as a legal rule to let national courts escape referrals when they are unwilling to make them. 85 Others say that acte clair might induce courts of different levels to cooperate more by promoting trust between them. 86 Still others speculate that some national courts may have abused acte clair, 87 but so far there has been no complaint from the ECJ. IV. LESSONS FOR HONG KONG FROM THE E.U. The E.U. treaty and rules of judicial economy have much to teach Hong Kong about the practice of preliminary references because there is a complete parallelism between the procedures of the E.U. and Hong Kong. The text of TFEU Article 267 echoes the functions that the CFA tries to achieve with its classification test. The E.U. case law echoes the functions of the necessity and arguability tests, except that the E.U. rules are much more developed. There is no E.U. parallel to the predominant provision test, which has been discredited and serves no legitimate purpose. By making comparisons to the E.U. law, it becomes easy to understand at least two major mistakes in the current scholarship about preliminary references in Hong Kong: first is the continuing argument over order of operations; second is the overly restrictive attitude towards implementing E.U.-style rules of judicial economy. This section addresses both of these mistakes. A. No Order of Operations In E.U. law, there is no fixed ordering to the preliminary reference rules or exceptions. A national court need only follow logic and expediency, so if it finds any one reason not to refer, it can dispose of the argument on that basis alone. This point should be instructive for Hong Kong. In fact, there is nothing in the text or the fundamental logic of the Basic Law that demands an order of operations. If a referral can be rejected based on 83 CILFIT, supra note 75, at CHALMERS, supra note 61, at Id. at CRAIG & DE BÚRCA, supra note 73, at CHALMERS, supra note 61, at 190. Summer